How the New Definition of Waters of the US Affects Regulation

At the end of May, the U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army, Corps of Engineers (USACE) issued a significant final rule that outlines the scope and definition of waters protected under the federal Clean Water Act (CWA). The CWA is the principal statute for protecting national water resources from pollution and destruction, and this new rule was enacted to “enhance protection of the nation’s public health and aquatic resources and increase CWA program predictability and consistency by increasing clarity as to the scope of ‘waters of the United States’ protected by the Act.”

The EPA and USACE say the ruling is in response to years of requests from the general public for clarification of which waters are protected and regulated under the CWA. EPA and USACE assert that by implementing this rule it will make permitting simpler, less expensive, and more expedient. The rule itself was hotly debated before being enacted, and since the rule was officially issued, both proponents and critics have had a great deal to say about the changes that will result. Regardless of the opposing opinions, the rule does include key changes to the CWA that will have real effects on regulation.

Changes included in the final rule

According to the EPA, the new rule only extends the CWA’s reach by about three percent, with the main aim to enhance regulatory certainty. The rule only protects waters that have been historically protected, and does not change private property rights or change the policy on irrigation or water transfers. The regulations regarding navigable waters, interstate waters, territorial seas, and impoundments were not affected.

The main changes apply to what the CWA refers to as adjacent wetlands/waters, tributaries to the traditionally navigable waters, and isolated or “other” waters. Previously, tributaries were not defined, and the new rule defines them as water features that have a bed, banks, an ordinary high water mark, and flow downstream. Headwater ephemeral and intermittent streams that have these characteristics will be regulated under the new final rule based on scientific evidence of significant connections to downstream waters.

The rule also specifies that adjacent waters be protected if they are within a minimum of 100 feet within the 100-year floodplain and a maximum of 1,500 feet of the ordinary high water mark of rivers, lakes, and their tributaries. This ruling marks the first time that physical and measurable limits have been placed on regulated waters and wetlands.

Isolated or “other” waters were formerly only vaguely defined, and the new rule names them for clarity. This category includes waters with a significant nexus within the 100-year floodplain of navigable or interstate waters, the territorial seas, or within 4,000 feet of jurisdictional waters. The rule provides protection to prairie potholes, Carolina and Delmarva bays, pocosins, California vernal pools, and Texas coastal prairie wetlands, which have been proven capable of significantly affecting downstream waters.

Lastly, the CWA previously expressly excluded waste and treatment systems along with prior converted cropland from the definition of “waters of the U.S.,” and the new rule adds ditches, groundwater, and Municipal Separate Storm Sewer Systems (MS4s), among others, to this exclusion.

Implications and regulatory impacts

According to the Brookings Institution, the rule will provide clearer protection to nearly 60 percent of the country’s streams, especially seasonal and rain-dependent ones. The rule does not create any new permitting requirements, and all exemptions and exclusions that previously existed under the CWA have stayed the same. However, the rule does extend the protections of the CWA, which could have effects on agriculture, business, and utilities.

Unfortunately, one of the outcomes of this new rule is that local governments and private organizations are likely to face higher permitting costs. Section 404 of the CWA regulates the activities in all waters protected under the legislation, and now that more waters will be explicitly designated as “waters of the U.S.,” a permit may be required where it previously wasn’t before discharging into certain waters. Operations that would discharge dredged or fill materials into the newly protected wetlands and streams will have to show that no practical alternative exists that would be less harmful to the environment and that the discharge will not significantly degrade water quality.

However, prior to this rulemaking, nearly any water body could be subject to a time-consuming case-specific analysis, even if the end result was that the water body was determined to be outside CWA jurisdiction. By reducing this uncertainty, the EPA and USACE anticipate that savings for the government and business will amount to between $318 million to $514 million per year. Additionally, they believe that the rule’s indirect benefits will include aquatic habitat protection, support for recreational fishing and hunting, and flood protection.

Many projects will still require a detailed investigation to determine whether waters and wetlands are subject to CWA protection, but the rule aims to make this process easier. Ideally, it will make the permitting process more streamlined and reduce enforcement costs at the federal level. Many of these newly protected wetlands and streams serve as sources of drinking water for millions of Americans, and for many, the benefits will outweigh the costs.

Editor's note: Will Medlin also authored an article on this topic in the February 2016 issue of the APWA Reporter. Read the article here.